An example of how tricky back injuries can be: A worker injured his back in 2005. A court had to determine if his current pain is related to the incident nine years ago.
Joseph Whitney suffered a back injury while working for Bearing Construction in Delaware as a pipe layer. He had back surgery and was out of work through February 2006. When he returned, he didn’t have any work restrictions.
Whitney eventually left Bearing and worked for other construction companies. He had some residual pain but was able to keep working.
In 2010, Whitney suffered three minor back injuries:
- the first when he was riding in a dump truck on uneven ground
- the second when he was in a car crash, and
- the third when he lifted a child and some camping equipment.
In 2011, Whitney started seeing a board-certified pain management doctor. Whitney said he was experiencing more lower back and leg pain.
In May 2012, Whitney stopped working in heavy construction because he could no longer take the pain from demanding physical labor. He was able to get a temporary job operating a forklift.
That same year, Whitney filed a petition with the Delaware Industrial Accident Board (IAB) seeking disability benefits and medical expenses through Bearing’s workers’ compensation insurance.
His pain management doctor testified in support of his request for additional workers’ comp benefits.
A doctor hired by Bearing initially agreed that Whitney’s 2012 pain was the result of the 2005 injury.
But neither doctor had known about Whitney’s three minor back injuries in 2010. The doctor hired by Bearing changed his opinion, stating the three minor injuries in 2010 were the cause of his pain in 2012.
The IAB determined Whitney’s pain was the result of his 2005 injury. The board also found the 2010 incidents were insignificant and couldn’t account for his current condition.
Bearing appealed to a state court which reversed the IAB’s decision, finding there was insufficient evidence to support Whitney’s doctor’s testimony. The appeals court overturned the IAB’s decision. Whitney took his case to the Delaware Supreme Court.
Deference to comp board
Whitney argued the IAB’s decision was supported by substantial evidence and shouldn’t have been reversed.
The Supreme Court noted, “The [IAB’s] finding of fact is given a high level of deference.”
Previous case law allowed the IAB to adopt the opinion of one medical expert over another at its discretion.
The Supreme Court found it was reasonable for the IAB to side with Whitney’s doctor over the company’s physician:
“Although we do not condone the fact that Whitney kept information about the 2010 incidents from [the two doctors], the record indicates that the Board fully considered the 2010 incidents and relied on substantial evidence to conclude that they were nothing more than temporary aggravations.”
The Delaware Supreme Court reinstated the IAB decision, awarding Whitney workers’ comp benefits.
Two observations regarding this case:
- Time and again in workers’ comp appeals that go to state courts, those courts are required by law to give a great deal of consideration to the workers’ comp board’s original decision. The higher these cases go in the court system, the more difficult it is to overturn a decision in favor of a worker.
- The best defense against a workers’ comp claim for a back injury is for companies to do all they can to keep these injuries from happening in the first place. Training on safe lifting is key. Employee wellness programs to keep workers in the best shape possible are also a big help. Once an injury has happened, the vast majority of the time it’s too late to avoid workers’ comp costs.
What do you think about the court’s decision? Let us know in the comments.
(Whitney v. Bearing Construction, Supreme Court of Delaware, No. 496, 2013, 5/30/14)